NLRB Ruled No Confidentiality in Workplace Investigations

The NLRB ruled last week that an employer may not prohibit employees from discussing ongoing investigations of employee misconduct.  In Banner Health Systems, Case 28-CA-023438 (July 30, 2012), a human resources consultant routinely asked employees who had made an internal complaint not to discuss the matter with any of their co-workers while the employer was investigating the complaint.  In order to justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees' Section 7 rights.  See Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. At 15 (2011).  The NLRB found that Banner Health did not meet its burden.  The employer is required to determine whether:

1.  a witness needs protection in an investigation;

2.  evidence was in danger of being destroyed;

3.  testimony was in danger of being fabricated;

4.  there was a need to prevent a cover up.

Id.  The employer's “blanket approach” failed to meet these requirements.  The NLRB also found that the employer, by maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct, violated Section 8(a)(1) of the Act.  Employers, similar to Banner Health, often include confidentiality provisions as part of their internal investigation procedures.  In light of this recent NLRB decision, employers should review their policies and procedures regarding confidentiality of investigations.  If you have any questions about this decision, or any other labor and employment related matters, please contact Kaye Law Offices, P.A.